Abstract:
In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extra-territoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components — including principles of extra-territorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption in the piracy context in order to grant the United States universal jurisdiction over that offense. Rather than rely on this strong indicia of congressional intent, the Court in Kiobel instead seized upon a judicially invented presumption that came into existence twenty years after the ATS was enacted, gave it novel application to a jurisdictional statute and claims authorized thereunder, and then projected it backward in time.
Yet Kiobel nonetheless correctly determined that conduct-regulating rules of decision under the ATS derive from international law and that domestic law of the forum, or lex fori, provides procedures and remedies. This framework is consistent with public and private law principles of the law of nations under which the statute ought to be construed. Although this framework should have led the Court to conclude that the claims in Kiobel were actionable, the Court’s misunderstanding has not completely erased the possibility of future claims involving foreign elements from being brought under the statute. The Court left the door open for claims that sufficiently “touch and concern” the United States. The Article concludes that, going forward, courts should use international law for the conduct-regulating rules under the ATS and domestic law for procedures and remedies. Jurisdictional principles of the law of nations ought to guide analysis of whether claims involving foreign elements sufficiently touch and concern the United States so as to displace the presumption against extra-territoriality.

Abstract:
The debate over the extra-territorial application of the Alien Tort Statute (ATS) raised by Kiobel v. Royal Dutch Petroleum Co. presumes an underlying tension between a state’s exercise of civil universal jurisdiction and its national interest. Realist-based critiques of the ATS posit that harmful consequences result when the United States provides a civil remedy for human rights abuses that occur in foreign territory, even where the conduct transgresses universally recognized norms. These critiques maintain that ATS litigation undermines U.S. investment in foreign countries; provokes a backlash against the United States in affected countries while also angering U.S. allies; and, more generally, reflects a naïve view of international relations that interferes with the executive’s prerogative to make foreign policy.
In Kiobel, the Supreme Court appeared to vindicate these concerns in holding that the presumption against extra-territoriality applies to the ATS, thus limiting suits that may be brought under the statute for serious human rights violations that occur in foreign territory. Although the decision to adopt the presumption against extra-territoriality was supported only by a five-Justice majority, the Court was unanimous in concluding that the ATS did not provide for universal jurisdiction and in recognizing that ATS suits could potentially undermine U.S. interests.
This Essay explains how concerns about the adverse consequences of human rights litigation underlie Kiobel’s adoption of the presumption against extra-territorial application. It also argues, however, that those concerns are overstated and ignore the way in which ATS litigation can advance U.S. strategic interests. The Essay concludes that even as Kiobel imposes a new territorial nexus requirement, it leaves open the possibility that some consideration may be given in future cases to how ATS suits advance U.S. interests in determining whether the presumption against extra-territoriality is displaced.